Matter of Zarvela v Banks

2014 NY Slip Op 03850 [117 AD3d 1070]

May 28, 2014

Appellate Division, Second Department

As corrected through Wednesday, July 2, 2014

[*1]

In the Matter of Victor Zarvela,Appellant, v Tamira Banks, Records Access Officer, et al.,Respondents.

Victor Zarvela, Woodbourne, N.Y., appellant pro se.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andMorgan J. Dennehy of counsel), respondent pro se.

In a proceeding pursuant to CPLR article 78 to compel the production of certaindocuments pursuant to the Freedom of Information Law (Public Officers Law art 6), thepetitioner appeals from a judgment of the Supreme Court, Kings County (Bunyan, J.),dated June 20, 2012, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

The petitioner was convicted of murder in the second degree and criminal possessionof a weapon in the second degree (see People v Zarvela, 211 AD2d 690 [1995]).The petitioner commenced this proceeding pursuant to CPLR article 78 to compeldisclosure of certain materials pursuant to the Freedom of Information Law (PublicOfficers Law art 6 [hereinafter FOIL]).

Contrary to the petitioner's contentions, the requested statements of witnesses whodid not testify at trial are confidential and are not disclosable under FOIL (seePublic Officers Law § 87 [2] [e] [iii]; Matter of Esposito v Rice, 67AD3d 797 [2009]; Matter of Johnson v Hynes, 264 AD2d 777 [1999]).

The petitioner's request for cooperation agreements with two trial witnesses isduplicative of a 1996 request for the same materials. That request was denied and thedetermination was never appealed from administratively (see Public Officers Law§ 89 [4] [a]). Therefore, this proceeding is, in part, a belated attempt to seekjudicial review of that prior determination (see CPLR 217 [1]; Matter ofMendez v New York City Police Dept., 260 AD2d 262 [1999]).

Accordingly, the Supreme Court properly denied the petition and dismissed theproceeding. Skelos, J.P., Sgroi, Cohen and LaSalle, JJ., concur.